tv [untitled] December 17, 2012 2:00pm-2:30pm PST
head, i swore i wouldn't get it out, but i did. >> i don't feel strongly about it, if the commission wants to to prevent commissioners from talking amongst themselves. i don't know that that's necessary, but i wouldn't object. >> i was looking at it more from what the public comment might be, if they think that the ex parte communication should be included, no communication between the commissioners, even between one commissioner and another prior to the hearing? seeing that we're excluding
almost everybody else. >> right although we were excluding anybody that would come before us and would be presenting evidence or making argument. >> the only circumstance -- excuse me, sorry. the only circumstance i could see would be and you and commissioner studley whether the chair and vice-chair need to talk prior to a hearing about the running of whatever matter is going to come before the commission and whether we should place whether that would be a limitation on the chair and vice-chair, just talking about how to conduct the matter going forward. >> that is a good point. >> so i wonder if that is taken care of by the fact that
relates to the merits of the complaint and excludes scheduling. >> right. so perhaps, yes. >> so perhaps that is anticipated? >> yes. >> okay. >> this is very fussy. i hate editing as a group, but except for "communications generally and committed between a court and party, communications are not typically committed." odd raiding. >> conducted? >> that would be better. >> the sort of thing we caught count on mr. renne for. >> any other proposed changes to chapter 4?
public comment? >> i'm still richard knee. in the previous draft of the decision points, there was a provision declaring that the commission would not be required to televise portions of its meetings held in closed session or otherwise required to be confidential. unless it's escape my eyeballs the current draft does not contain that language and i would like to see the subject re-introduced, but i suggest that the commission require audio and/or video recordings of all such sessions with the recordings to be made available for inhall -camera review as to whether questions arise of incould have hail discussions or acs have taken place during
those closed sessions? x and i'm still generally david pillpa and generally committed or should be. [ laughter ] let me go to item b, without complicating this section, unnecessarily, we have seen complaints about investigative files. i don't know how explicit this particular document should be about complaints, files and related documents. i just don't want anyone to interpret any more or less from this language than is appropriate. i am not sure that i am prepared to think through whether an investigation under these regs is the same as an
investigation under 6.99-13 whether it's an investigative file as law enforcement agency, how it deals with rivera. all of those issues, i suspect, if we ever have a referral or have an investigation and generate these files, somebody is going to say let me see them. and then we're going to go back and forth about whether it is or isn't. i'm just trying to anticipate that now and have language in here or different language shall be disclosed as necessary or under cpra or sunshine, which isn't necessarily the most helpful. i mean it's true, but what does that mean? >> so you would propose to strike it entirely? >> i am struggling and i'm not quite sure what the best answer
is, frankly. i am expressing a concern about it. and i suspect we're all smart people in the room and we all probably have different views about the matter. but i think we can all see there is something. i don't know. the question about ex parte communications, i was also looking at the existing regs, page 15 of attachment b. miscellaneous provisions about ex parte. i like that language generally. i think that was adopted here in a way that pretty much makes sense. i just don't think -- i think it makes sense to limit ex parte communications between parties and representatives of the complainant and respondent and members of commission. but beyond that, i would be
careful about how much you limit it, if a member of the public comes up to you on the street and says hey i know you are on the commission that allegation seems silly or i think that person really did something wrong and up should do something about, i'm not sure you should be any lore limited engaging in that discussion than under other regs regarding how other complaints are handled. even if these are a more public -- this is certainly a more publicly known complaint than a complaint handled elsewhere. but if someone knows about it and someone wants to engage and they are not representing a party, and we're not barring that communication with respect to a different type of complaint. i don't know why you would have a higher standard here? maybe it was just the language "any member of public." i guess
that is too subject to interception. thanks. >> so what does the commission think about the ex parte language? was there a reason we didn't follow the language from the regs? >> we definitely wanted to make it clear who the commission shouldn't be talking to and we just presumed that you would follow the rules that you can't speak to more than one of you as a normal matter of course. so we deposit specifically identify that
commissions couldn't speak to each other. there may be a time it's necessary, possibly. if three of you were together, that might be a problem on a whole different level. >> i think i would be in favor of leaving it as-is. and changing "committed" to "conducted." i don't feel as strongly as other members of commission do. >> that is fine. so the two changes we have talked about for section 4, decision point 4 is changing "committed to" conducted," in 1a and adding section j.
with the addition of >> each commission who participates in the decision, but who has not attended the hearing in its entirety, shall certify -- got that? okay. &is there a motion to adopt decision point 4 as amended? all in favor? >> aye. >> opposed? the motion passes. i had one other question about decision point 4. i don't think it will change the vote. can you give me an example of a complaint that would apply under i?
>> someone could allege that a city official violated the conflict of interest rules and was at the same time not provided a public document in support of or related to that. it could possibly be withheld by the sail same person. we're just trying to allow if it were to occur. >> okay. so i think decision points 5 6 and 7 can be handled together. i think they are pretty minor. does anyone on the commission disagree with handling decision points 5, 6 and 7 as one?
any questions or discussion with respect to the proposed edits to the regs as discussed in in 5, 6 and 7? public comment? >> david pillpa, a couple of things. on the agenda for tonight's meeting discussion possible action on draft regs governing the handling of complaints related to alleged violations and referrals from the task force. i'm not sure i'm not sure within that scope you could actually act to amend the regs for investigation and enforcement proceedings. it pay be a close call, but it may be dependent on whether you take final action tonight or not. i don't have any particular quarrel with the proposed edits to the general regs.
if i could, for a moment, on your last comment on subsection i in section 4 chapter 4. in the event that there is a complaint that alleges both a sunshine violation and other improper activities of other sorts, i would hope that the staff-initiated complaint pursuant to the last section doesn't reveal any more or less than necessary for the processing of the sunshine-related complaint, because the regular complaint wouldn't be disclosed under current provisions in the event it's dismissed or doesn't get tie problem cause report, et cetera.
i'm not sure that you want to reveal any more than you would otherwise, just because someone added a sunshine allegation to a complaint. >> where do we discuss disclosing the contents of the investigative? >> it doesn't, but where it says, "staff shall initiate a complaint of the alleged violations." then staff could be initiating the complaint, but they would have to import the allegation facts, whatever, from the complaint presumably filed by another. unless the original complaint was staff-initiated. if someone hypothetically complained against a department head and said that they absconded with funds and oh, by the way didn't give me documents i was entitled to, you would bifurcate the complaint and handle the one as
improper governmental activities and the other parts a sunshine violation. but i just want to be sure that people have enough information to go on the sunshine complaint, but you wouldn't necessarily reveal who the underlying complainant was. you would necessarily have to reveal who the respondent was. >> it's an interesting point. >> sorry. >> i wonder what the staff thinks on that? because the staff can't initiate a complaint either on its own awareness or it can say we heard about it from x, but we're going to erase x and issue a complaint? >> >> first of all we're bound by the confidentiality provisions
so we would be very careful to make sure nothing that would be considered confidential was disclosed. we also would have the opportunity to file on behalf of somebody or staff-initiated, then it's staff versus public official x. so the original complainant would be hidden or masked in that sense. >> i have no quarrel with that and just wanted to anticipate how that might play out. my last comment and i'm sorry i'm going back to the chapter 2/chapter 3 issue for a second on the 2 versus 3 votes. i have no problem with the chapter 3 presumption that if you don't have three votes there is no violation. but under chapter 2 if there aren't three votes to not find a violation, then it sort of suggests that there was a
violation. and that from my perspective is potentially problematic. i don't want there to be that inference that just because there weren't sufficient votes to find no violation that therefore there was, or might have been. i mean, it kind of leaves a cloud there. that is causing me some heartburn or something. thanks. >> mr. shen, first question for you, when you are out of the room, that is had your name is invoked. there was a question raised as to whether we can amend the regs given the agenda? do you have an opinion on that? >> you mean just a noticing question? yes, we can change the regs. we do change regs in ordinances and approve them out the same day. >> is the notice in the agenda sufficient to do so?
i think the better practice would be to make the change at a later meeting. because it concerns super and complaints. okay, let's defer 5-7 unless the commission not properly noticed. the other issue that may be worth discussing is this idea that if under chapter 2, if we don't have a majority voting to
find no violation, are we comfortable with two or fewer -- are we comfortable with the situation where we wouldn't have a major one way or the other? >> would you just remind us sort of for the record and the discussion how many commissioners it takes to hold a meeting in the first place? it's not that there could be one person or two people here. >> there have to be three. sometimes four, depending on the issue. but for this, i think we could do it with three. but you would be in the situation potentially where you had three members of commission hearing the issue you wouldn't get a majority either way. thus, by finding a violation with only even one commissioner
supporting the finding of the violation. which is somewhat troubling. i don't know if staff, before i hear from you mr. pillpa. >> so we could put a provision in here that says five members must be here in order to have a hearing. to ensure that, you know, that situation doesn't occur. even with four members you could still have a 3-1 vote and that would be perfectly fine. you would have a 3-0 vote with just three people sitting here and that would be perfectly fine too. if you want to ensure that a party comingbefore you has full access to the commission rather than four or three, we could certainly write in here saying no hearing will be held unless all five commissioners will be
there. although that could be potentially issues someone gets suddenly ill or there is an emergency. then we have to suddenly cancel everything. >> you would flip it. you could make it that you need three votes to find the respondent has committed a violation and make the burden easier on the respondent. the burden would remain the same on the respondent. >> mr. chatfield. >> hopefully i will make it easier. cause of hearing was developed
because because there was a concern had a something coming from the task force, they have already made a decision. so the commission wanted to ensure that that commission or that decision was sort of coming in. the presumption is a violation has occurred when had he come here. so the respondent has to show why the task force was incorrect in making that decision for you to move on the show-cause part, not chapter 3. so i don't know if that will necessarily -- that would wind up changing the entire show-cause procedure probably or basically taking the presumption of a violation occurred out, if that was to happen. >> i was trying to think outloud as to whether we could maintain that presumption while switching around the vote. but maybe not.
>> can we simply say at a meeting attended by four or more commissioners. a meeting or meetings? >> you still run the risk. >> or participation of four or more commission members? >> you still run the risk of 2-2? >> could you add one more thing? when we have hearings, we always endeavor to have all five commissioners here. so it's been very rare that that hasn't happened. i think it's only happened once and that was not for a part of a hearing, but to make some post-hearing decisions. >> we have had plenty of meetings where a commissioner has had an excuse the absence. >> i don't think we have ever had a hearing. >> right, but this would be at a regular meeting. >> okay. so i think we would approach this at the next practicable meeting is the one that all five commissioners were in attendance.
make that a practice. you know, if you want to memorializes it, now you can. but we may not always need to do it. if we institute it as customarily how we handle things it would leave flexibility in scheduling. >> in event of a 4-commission member hearing and a 2-2 vote, there seems to be two options. one is since there is a presumption and a prior finding that 2-2 leaves that i.e., the sunshine task force finding remains -- goes into effect. becomes our finding, because we were split 2-2, i.e., don't have a three-person vote. or as we discussed earlier, could we carried forward to a subsequent meeting.
if the commissioners at the 2-2 say that was a complicated hard-fought and sincere, this is one that we really ought to bring forward to the next meeting and allow the fifth commissioner the possibilities of doing this by a 3-2 vote, whichever way that commissioner should go. but i think we have those same options at the 4-person meeting could yield a 3-1 or 4-0 result without finding us to always have five for those. we don't know how numerous, how frequent an occurrence this might be. i respect the practice and i appreciate the executive director's point, but it's a
high standard. part of what we want to do is bring them forward and act on them in a timely, responsive way. i am just trying to figure out how to make solid decisions, but without being unrealistic about how often we can get five? >> i think that is a good compromise. mr. st. croix, did you have something to add? >> no, i was just thinking that the circumstances are going to be limited anyway. if a vote is -- if there is four people and the vote is 3-1 against the respondent, the result is not going to change even if the other commissioner was there. and if there are three commissioners, and the vote is 3-0, the addition of two commissioners wouldn't change the outcome. >> right. it's the situation where it's 2-1 and the 1, particularly in a situation where the 1 is the vote to find the violation. and then you have basically
found a violation based on one vote. >> yes, so if the situation was 2-1 or 2-2 the outcome could change. in which case that is when you would not postpone, but continue the hearing to the next session. >> i like this idea of requiring four. we require it for some things already and i think this is something where it would be helpful. >> are you saying a vote of four or four people at the meeting? >> four people in attendance is what i was thinking. >> yes, that is right. >> we have got to lean on the staff here a bit. we don't want to do something -- . that is the simplest thing to doj because you can just add a